House of Commons Home Affairs Committee The US-UK Extradition Treaty Twentieth Report of Session 2010–12 Volume I: Report, together with formal minutes, oral and written evidence Ordered by the House of Commons to be printed 27 March 2012 HC 644 Published on 30 March 2012 by authority of the House of Commons London: The Stationery Office Limited £0.00 The Home Affairs Committee The Home Affairs Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Home Office and its associated public bodies. Current membership Rt Hon Keith Vaz MP (Labour, Leicester East) (Chair) Nicola Blackwood MP (Conservative, Oxford West and Abingdon) James Clappison MP (Conservative, Hertsmere) Michael Ellis MP (Conservative, Northampton North) Lorraine Fullbrook MP (Conservative, South Ribble) Dr Julian Huppert MP (Liberal Democrat, Cambridge) Steve McCabe MP (Labour, Birmingham Selly Oak) Rt Hon Alun Michael MP (Labour & Co-operative, Cardiff South and Penarth) Bridget Phillipson MP (Labour, Houghton and Sunderland South) Mark Reckless MP (Conservative, Rochester and Strood) Mr David Winnick MP (Labour, Walsall North) Powers The Committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the Internet via www.parliament.uk. Publication The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at www.parliament.uk/homeaffairscom. Committee staff The current staff of the Committee are Tom Healey (Clerk), Joanna Dodd (Second Clerk), Ruth Davis (Committee Specialist), Eleanor Scarnell (Inquiry Manager), Andy Boyd (Senior Committee Assistant), Victoria Butt (Committee Assistant), John Graddon (Committee Support Officer) and Alex Paterson (Select Committee Media Officer). Contacts All correspondence should be addressed to the Clerk of the Home Affairs Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 3276; the Committee’s email address is [email protected]. The US-UK Extradition Treaty 1 Contents Report Page Introduction 3 The “probable cause” and “reasonable suspicion” tests 5 The prima facie evidence test 7 The issue of forum 9 Conclusion 12 Annex: Statement to the Committee by United States Ambassador Louis B. Sussman 13 Conclusions and recommendations 16 Formal Minutes 18 Witnesses 20 List of previously printed written evidence 21 List of printed written evidence 21 List of Reports from the Committee during the current Parliament 22 The US-UK Extradition Treaty 3 Introduction 1. One of the first commitments made by the Coalition Government was to review the operation of the Extradition Act 2003 and the US-UK Extradition Treaty to make sure that they are even-handed.1 This commitment was made in the context of widespread political concern about the operation of the UK’s extradition arrangements with the USA. Representatives of both Coalition Parties had expressed reservations about the operation of the Treaty while in opposition. Opening an emergency debate called in 2006 by the Liberal Democrats shortly before the extradition of the “NatWest Three”,2 Rt Hon Nick Clegg MP said, We on the Liberal Democrat Benches have objected to the extradition arrangements with the USA ever since the text of the new treaty was published in May 2003. [...] the extradition treaty and its enactment through the Extradition Act 2003 is manifestly unfair to British citizens.3 During the same debate, Rt Hon Dominic Grieve MP (then the shadow Attorney General), expressed reservations about the new standard of information required by the Treaty— which he described in relation to one case as “very scanty indeed”—and described the lack of forum provisions in the 2003 Act as “a serious flaw”.4 Rt Hon David Blunkett MP, who was Home Secretary when the Treaty was signed, told us that although the 2003 Treaty was in principle an improvement over previous treaties, “the practice has been very different”.5 2. Since the extradition of the “NatWest Three”, there have been several other high-profile cases which have been the focus of public concern. During the course of this inquiry, the Committee took evidence from representatives of several of those involved—Janis Sharp, whose son, Gary McKinnon, has been charged with several counts of damaging computers belonging to the US military;6 Ashfaq Ahmad, the father of Babar Ahmad, who has been in prison in the UK for more than seven years while an extradition request from the USA is dealt with;7 Elaine and Neil Tappin, the wife and son of Christopher Tappin, who has recently been extradited to the US to face charges for his alleged involvement in the sale of restricted weapons-system components to Iran;8 and written evidence from Eileen Clark, who is facing charges for allegedly kidnapping her now-adult children in 1998.9 This evidence has given us an insight into some of the difficulties experienced by those facing extradition, as well as their families. But it is important to bear in mind that there is another side to each of these stories and the Committee has not heard any of the evidence 1 The Coalition: our programme for government (Cabinet Office, May 2010), p. 14 2 For evidence from David Bermingham, one of the “NatWest Three”, see Qq 208–279 3 HC Deb, 12 July 2006, col. 1396. Although Mr Clegg referred to “British citizens”, citizenship is largely irrelevant in extradition cases and it is quite common for people to be extradited to the country of which they are a citizen. 4 Ibid, cols. 1410 & 1420. He was referring to the Morgan Crucible Case 5 Q 3 6 Qq 60–78 7 Qq 79–102 8 Qq 417–430 9 Ev 77 4 The US-UK Extradition Treaty against the accused in these cases. In this Report the Committee is concerned with the policy framework within which extradition decisions are made by the courts. The Committee has reached no conclusions about any specific case, either past or present. 3. The Prime Minister himself has acknowledged the difficulties surrounding the McKinnon case in particular. In July 2009, when Mr McKinnon lost his judicial reviews against the Secretary of State and the Director of Public Prosecutions, the then-Leader of the Opposition described himself as being “deeply saddened and disappointed” by the decision and went on to say Gary McKinnon is a vulnerable young man and I see no compassion in sending him thousands of miles away from his home and loved ones to face trial. If he has questions to answer, there is a clear argument to be made that he should answer them in a British court. This case raises serious questions about the workings of the Extradition Act, which should be reviewed.10 4. In light of these high-profile, problematic cases, and to give effect to the commitment in the Coalition Agreement, the Home Secretary appointed Rt Hon Sir Scott Baker to carry out a review of the UK’s extradition arrangements in October 2010. Sir Scott, a retired High Court judge, was supported in his work by David Perry QC, who has experience of extradition cases as both a prosecutor and defender, and Anand Doobay, a solicitor whose practice focuses on representing the subjects of extradition requests and who is a trustee of Fair Trials International. The Panel’s Report was published in October 2011.11 5. The Review Panel received 209 written submissions, and held oral evidence sessions in London, Edinburgh, Brussels, the Hague and Washington DC over a total of 12 days. The evidence the Panel gathered remains with the Home Secretary, who has so far refused to publish it, despite our requests for her to do so. The Committee can see no legitimate reason for the Home Secretary’s refusal to publish the evidence to the Baker Review. The secrecy surrounding the evidence is as frustrating as it is inexplicable and it is not helping to improve low public confidence in this matter. The Committee recommends that the Home Secretary publish it immediately. 6. The Home Secretary is still considering how to respond to the Baker Report, which makes a number of recommendations for changes to both the US-UK extradition arrangements and the European Arrest Warrant, but does not recommend radical reform of either. The Committee has therefore decided to bring forward this short Report on the US-UK Extradition arrangements as soon as possible. The Committee will return to the issues relating to the European Arrest Warrant, which was also part of our inquiry, in due course. 7. In addition to the evidence published with this Report, the Committee held an informal meeting with Louis B. Sussman, the United States Ambassador, who put the US Government’s position to us a few days before the extradition debate in the House on 5 10 Conservative Party press release dated 31 July 2009, Grayling says McKinnon extradition is “very disappointing”. 11 A Review of the United Kingdom’s Extradition Arrangements (following Written Ministerial Statement by the Secretary of State for the Home Department of 8 September 2010). Presented to the Home Secretary on 30 September 2011 (hereafter, “the Baker Report”). The US-UK Extradition Treaty 5 December 2011.12 During our recent visit to the United States, the Committee held a conference call with Bill Pearson, a former Federal prosecutor with experience of making extradition requests to the UIK, and the Committee held a video conference with senior officials from the United States Department of Justice. Mr Pearson told us that, in US law, “probable cause” was a stronger test than “reasonable suspicion”, an issue which we consider in more detail below.